Stewart (Peter) v R [2008] NZCA 429; [2010] 1 NZLR 197 (22 October 2008)

Last Updated: 2 February 2018

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PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF WITNESSES A, B, C AND D.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2008 [2008] NZCA 429

THE QUEEN

v

PETER MAXWELL STEWART

Hearing: 22 July 2008

Court: Baragwanath, Wild and Heath JJ

Counsel: P J Davison QC, J H M Eaton and I Rosic for Appellant

A Markham and D M Jackson for Crown

Judgment: 22 October 2008 at 4pm

_{JUDGMENT OF THE COURT}

A The appeal is dismissed.

2. Order prohibiting publication of name or identifying particulars of A, B, C and D.

R V STEWART CA CA88/2008 22 October 2008

REASONS OF THE COURT

_{(Given by Baragwanath J)}

Table of Contents

_{Para No}

Introduction [1] Evidence from friends of the complainant [6] Evidence of A [8]

Evidence of B [10] A’s evidence: the propensity issue [11] The summing-up [27] Submissions [29] Application [42] B’s evidence [53]

Prior out of court statements

The re-examination and admission of out of court statements [56]

Section 35(2) [59] The Judge’s ruling [61] The evidence given by C [66] The evidence given by D [68] Submissions [69] Discussion [73] The direction in respect of C and D [88]

Warning on use of historical evidence [90]

The remaining grounds [101] Late admission of D’s evidence [102] Erroneous ruling to permit re-examination of complainant [103] The trial Judge failed to control the complainant from giving

evidence in a prejudicial and irrelevant manner [104] Breach of pre-trial undertaking as to evidence of anal injury [106] Misstatement of defence case [109] Evaluation [116] Result [127]

Introduction

[1] In December 2007 the appellant was convicted by a High Court jury of offences alleged to have been committed up to 40 years previously: five counts of indecency with a child under the age of 12, one count of sodomy, and one count of

rape. He was sentenced by the trial judge, Panckhurst J, to three and a half years imprisonment. He appeals against conviction on the ground that his trial was unfair.

[2] At the time of the alleged offending, between 1967 and 1974, the complainant was aged between eight and 14 years and the appellant between 22 and

28 years. Her complaint to the police was made in August 2004 and the appellant was charged in February 2006.

[3] During the period covered by the charges the complainant and the appellant were on terms of close friendship resulting from family links. The appellant denied any sexual contact with her except for a single occasion, when she was 16 or

17 years old, on which he said she had consented to an act of sexual intercourse.

[4] The principal grounds of appeal are:

(1) The trial Judge erred, first in admitting, and then in directing the jury as to how they might use, evidence from friends of the complainant of lesser sexual offending against them;

(2) The Judge should not have permitted the prosecution to present in re- examination prior out of court statements made by witnesses, and erred in the directions given as to how they might be used, especially the lack of any warning as to reliability; and

(3) The Judge should have given the jury a stronger warning of the danger of convicting after so long a period.

[5] Further grounds were advanced in support of an overall submission that there has been a miscarriage of justice and that there should be a retrial.

Evidence from friends of the complainant

[6] There was argued pre-trial the admissibility of evidence of two women, A and B, that the appellant had performed certain sexual acts upon them. Reversing a decision of Panckhurst J, this Court held that the evidence of A was admissible as

what the Evidence Act 2006 (the Act) terms “propensity evidence”: R v S [2007] NZCA 497 at [27] – [29]. While B’s evidence was not admissible on that basis, it was held admissible as directly relevant to the complainant’s contention that there was a pre-existing sexual relationship between the appellant and the complainant: R v S at [30]. The evidence of both complainants was accordingly admitted at trial.

[7] In his written submissions in support of the present appeal, the appellant contended that the trial Judge had erred in admitting the evidence of A but, given this Court’s ruling, did not seek to re-argue the point here. In the course of oral argument the appellant was given leave, without objection from the Crown, to re-argue that point on the basis that counsel contended that the evidence at trial had emerged in a different form from that assumed by this Court when the pre-trial ruling was given.

Evidence of A

[8] A gave evidence that she and the complainant were close friends throughout their time in primary school and they would visit the farm occupied by the appellant and his wife in the summer holidays. A described how, when she was about ten, she travelled in the front bench seat of the appellant’s truck, sitting between the complainant and the appellant. She said she did not feel comfortable with the appellant; that if he lifted her into the vehicle he would touch her in a way that other adults did not; that somehow his hand would always end up inside her leg and he would push against her in between her legs. She said that when she was lifted into or out of the truck she always felt his hands going almost in between her buttocks; and that on a number of occasions he told her she needed a bra. On another occasion A was with the appellant in a swimming pool. He started to touch A from her waist down, his hands going over her. The complainant got her out of the pool.

[9] The appellant produced a photograph of the interior of what he said was the truck, showing the bench seat and a long floor gear lever; he said that when there were three people in the truck the one in the centre had to be either to the left of the tunnel of the gear box or each side of it. He suggested that there might have been contact with the complainant’s legs when he was changing gear. He denied any

recollection of talk about a bra, and said he had never been in a swimming pool with

A.

Evidence of B

[10] B’s evidence at trial was about an incident that happened one summer when she was about 14 years old. She and the complainant were standing outside in the courtyard by the garage. The appellant put his right arm around the complainant and pulled her into him and put his left arm around the witness and pulled her into him. His left arm came over and held on to her right breast. She said she felt very awkward about it. He started to kiss her on the neck and she pulled away. She said he was propositioning her to go inside with him and the complainant. Because of the background that she had heard about (she said that the complainant had been telling her that the complainant and the appellant had been having sex quite regularly) she was scared, pulled away from him and went home.

A’s evidence: the propensity issue

[11] The first issue is, as it was pre-trial, whether A’s evidence was admissible. The Crown argued that it was evidence of propensity which satisfied the test of admissibility stated in ss 40 and 43 of the Act.

[12] Those sections are to be construed in accordance with ss 6, 7 and 8. Section 6 states the purposes of the Act, which include providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990 and promoting fairness to parties.

[13] Section 7 states that all relevant evidence is admissible in a proceeding except evidence that is inadmissible or excluded under the Act. Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything of consequence to the determination of the proceeding. But s 8 excludes relevant evidence if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding. By s 8(2), in determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial

effect on a criminal proceeding, the judge must take into account the right of the defendant to offer an effective defence.

[14] There is overlap among those provisions, the New Zealand Bill of Rights Act

1990, and ss 40 and 43, on which the present argument particularly turns. Those sections are reproduced below. Salient passages are emphasised; comments are in parentheses:

40 Propensity rule

(1) In this section and section... 43, propensity evidence—

(a) means evidence [in this case, A’s evidence] that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved;

...

(2) A party may offer propensity evidence in a ... criminal proceeding about any person.

(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section ... 43...

43 Propensity evidence offered by prosecution about defendants

(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute [in this case, that the appellant offended sexually against the complainant in the manner alleged] in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.

(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

...

(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of evidence on the defendant,

the Judge must consider, among any other matters,—

(a) whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and

(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[15] The Bill of Act guarantees an accused rights to a fair trial (s 25(a)), to be presumed innocent until proved guilty according to law (s 25(c)), to natural justice (s 27(1)), and to present a defence (s 25(e)). Wrongly used, propensity evidence can imperil each of these rights. So the law requires that it be handled with particular care.

[16] In substantially codifying the law, Parliament by ss 40 and 43 has necessarily used general language in an endeavour to accommodate every kind of propensity evidence in all classes of criminal case. Subsection (2) of s 43 requires identification of the issue to which it may be relevant. Subsection (1) reflects the general principle of s 8(2) that the legitimately probative value of evidence must outweigh the risk of illegitimate prejudice. Emphasis is added by subsection (4) to ensure that the judge considers the two specific factors raised when determining whether the balance lies in favour or against admission of propensity evidence. Each is important. The former gives effect to the need to admit all relevant probative evidence against an accused, the only qualification being if the risk of illegitimate prejudice outweighs

the value of that evidence. The latter is crucial because of the absolute right of the accused to a fair trial.

[17] Subject to the comment just made, as Mahoney et al observe (see The Evidence Act 2006: Act and Analysis (2007) at 183), the Act provides no guidance on how a judge is actually to perform the weighing up process required by s 43(1). It follows that this Court must accept responsibility for drawing the line, guided by Parliament’s language and its own experience of the competing interests of justice.

[18] The complainant described in evidence an incident that took place when she was about eight years old. She said while she was “in the middle of the jeep” the appellant went around the back, undid his pants and took his penis out, asked her to touch his penis which she did, put his hand into her underpants and touched her vagina and masturbated with a handkerchief.

[19] There is some difference between the complainant’s account of “the truck” as being a Land Rover or Jeep, and the appellant’s evidence that he did not own a Range Rover or a Jeep at the relevant time.

[20] In terms of the s 43(3) criteria, the complainant’s evidence of touching in the truck was confined to a single occasion but A’s evidence suggested recurring acts (para (a)). The connection in time between the conduct described by A and that alleged by the complainant (para (b)) is unclear. The conduct is closely similar (para (c)). The number of persons making the allegations, in terms of admissible propensity evidence, is only one (para (d)). We do not need to decide whether, had the conduct described by A been performed in the absence of the complainant, it would have been admissible as evidence of a propensity to act indecently towards girls of the same age as the complainant. But the performance in the presence of the complainant of a type of indecency that is said by the complainant to have progressed to the gross misconduct that is the subject of the counts is a salient feature, which falls within the “other matters” which the Judge may consider (subs (4)). It is admissible on that basis.

[21] The significance of that evidence is strengthened by the evidence of B.

[22] In the case of B, this Court held pre-trial that the point of the evidence was not that the breast touching constituted a propensity to commit the kind of offence with which the appellant is charged, but that the appellant’s actions seen in the context of his conduct at the time tended directly to implicate him in a sexual relationship with the complainant. We were not invited to revisit this Court’s pre- trial analysis on the admissibility of B’s evidence. Accordingly, it is unnecessary to determine whether evidence of breast touching falls within s 43(1) (cf the argument of Professor Mahoney in his recent essay “Evidence” [2008] NZ Law Rev 195 at 206

– 207).

[23] R v Healy [2007] NZCA 451 adopts at [53] – [54] an analysis which takes as its starting point the wording of the propensity provisions and warns at [52] against reliance on the old “similar fact” cases. We note that this approach in this Court’s unreported decision in Healy overtakes that in the first instance decision, which has been reported: [2007] NZHC 1959; [2007] 3 NZLR 850.

[24] One theme of s 43 is of related sliding scales: the greater the risk of improper prejudice (ss 43(1) and 8(2)) the more compelling must be its probative value; and the stronger the Crown case in respect of the issue (s 43(2) – (3)) the higher the prospect of securing admission of the evidence. The weight to be given to any admitted evidence is, ultimately, for the jury to determine, but a Judge must necessarily make a provisional assessment of the probative value in order to rule on admissibility.

[25] Evidence of offending against other young girls can have a tendency to give rise to the prejudice referred to in ss 8 and 43(1): the risk of short-circuiting a jury’s attention from cool analysis of the evidence relating to the particular charge to reactive assumption that a man who has treated another girl in such a manner must be guilty. So care is needed to consider whether, with the assistance of appropriate judicial directions, a jury could reasonably be expected to deal justly with the evidence.

[26] Viewed together with B’s evidence we are satisfied that A’s evidence met the test suggested in [25]. And, while propensity evidence of certain kinds can tend to

distract a jury from its proper task, the present evidence falls well short of that: cf R v Smith [2008] NZCA 266 at [43] – [45]. It follows that the evidence of both A and B was properly admitted.

The summing-up

[27] Mr Davison challenged the summing up which, on the topic of the evidence of A and B, was in the following terms:

[44] That brings me ... to ... evidence given by a number of Crown witnesses ... The first of them is [A]... What is the purpose of the evidence she gave concerning her visits to the ... farm as a young girl ...? How may you use evidence of this kind in the context of a criminal trial such as the present?

[45] The evidence was admitted because of its close connection to the account given by the complainant. Once admitted, it is for you to assess it and what you must do is ask whether that evidence establishes a pattern of behaviour on the accused’s part. Does it indicate that as at this time, 1970-

71 about, he had a propensity to act in a particular way towards girls of this age. If, having assessed that evidence, alongside that of the complainant,

you consider that there is a pattern, a similarity, then you may use the evidence as directly supportive of the complainant’s account. But if you

don’t consider that it has any distinctive similarity about it, then you just put it to one side. What you cannot do as a jury is reason in this way and say, this is inappropriate, untoward conduct, therefore he must be guilty. That

would be facile and quite inappropriate.

[46] The search must rather be for whether there is, as I say, material which establishes a propensity on his part to act in a particular way towards young girls. You will need to look at a range of factors. Is it significant that this occurred on the farm in the circumstances we have heard about, when you think of the complainant’s evidence about what she says happened at [the farm]. The ages of the two young girls, both at [the same school], [A], 12 to

18 months, 18 months approximately older than [the complainant]. Two girls who are in the age range of about 11 to 13 you may think. Do you consider that it is similar conduct, involving touching, similar to that which the complainant described. Do you find it unusual, distinctive, given the relative ages and the age gap between the man complained about and the girls in question? Is it also a significant factor that what [A] described, she said occurred in the very presence of her friend, the complainant.

[47] So the issue becomes, do those features invest this evidence with real significance, so that it is just not evidence of untoward behaviour, but that it establishes a propensity to act in a particular way towards young girls. If so, you may use it as confirmatory of the complainant’s evidence. If not, then it is of no value.

[48] [B] gave evidence in a somewhat similar vein, but also rather different. She is much the same age as the complainant. She is four – six months older

than [A]. She became a neighbour ... from we know about June of 1974. And she described of course what she said was an event which was frozen in her memory, in the courtyard, where an arm was placed around each girl, they were pulled in, there was a muzzling or an attempt to kiss her neck and words spoken. She could not remember the exact words, but the effect of them was, would you like to come inside with me and [the complainant]?

[49] What is the purpose of this evidence and to what use may it be put? The Crown’s case is that [A] was propositioned to go inside and that that evidence is direct evidence of something said allegedly by Mr Stewart which contains confirmation that there must have been an improper relationship between him and [the complainant]. Whether you accept that interpretation of the evidence is entirely up to you. Again it is not permissible to reason well, this is untoward, it is not the sort of thing you would expect to be happening with a 15 year old girl, therefore he must be guilty. Rather, it is whether you find there was a propositioning, come inside which, itself, provides direct confirmation that there must therefore have been an improper relationship.

[28] The Judge referred, in his directions, to the need for “distinctive similarity.” But the law does not require such a direction; the sole issue is whether or not the conduct has the similarity required to permit admission as propensity evidence: see s 40(1) of the Act. The term “distinctive similarity” seems to have been taken from the pre-Evidence Act direction set out in R v Sanders [2000] NZCA 118; [2001] 1 NZLR 257 at [20] (CA). The element of “distinctiveness” is not necessarily an element of “propensity evidence” as that term is now defined.

Submissions

[29] Mr Davison submitted that the summing up was inadequate in relation to the propensity evidence of A and further that it wrongly suggested that B had given evidence of propensity.

[30] As to the former, he submitted that seven steps should be followed in summing up on propensity evidence:

(1) State the purpose of the witness’s evidence. (2) Explain what the propensity evidence is.

While it is defined in s 40(1)(a) (set out above at [14]), “propensity” is a term with which jurors may be unfamiliar. It would be helpful to give the dictionary definition of propensity as from the Shorter Oxford cited in R v Tainui [2008] NZCA 119 at [53] namely “inclination, tendency, bent, disposition”, of which we prefer “tendency” as most intelligible. In that case the Court described propensity at [40]:

In its statutory context, consistent with the preceding common law, it must connote a characteristic or attribute which can be said to be manifested by, or is special or distinctive to, the person. By its nature, a person’s propensity is a state of mind or conduct which is already in existence at the date of offending, as confirmed by the use of the past tense within the definition of the words

‘with which a person is alleged to have been involved’, and by the six factors which a Judge may take into account when undertaking the balancing exercise between prejudicial effect and probative value: s 43(3). Evidence of a person’s inclination, tendency or bent to a particular state of mind is admissible because it may be relevant to determination of an issue arising at trial.

(3) Identify the factors relied upon by the Crown establishing the relevant propensity in relation to the issue identified at step (1) and referring to any defence contentions.

It was agreed by the parties that a Judge should refer the jury only to such specific considerations in s 43(3) as are relevant. We agree. While the presence of certain of the factors may be relevant both to the judge’s decision as to admissibility and to the jury’s as to their verdict, reference to what is not directly relevant would act as a distraction from their task.

(4) Direct the jury that whether propensity existed is entirely a matter for them.

(5) Explain that, if propensity is found to exist, it is to be used as circumstantial evidence to be considered with all other evidence when

assessing the issues, including the reliability and credibility of the complainant.

(6) Explain that, if the jury does not accept that propensity is properly established it should put the evidence outside and leave it entirely out of consideration.

(7) Warn the jury not to jump to a conclusion that because the accused has offended on a previous occasion he must have done so in a manner alleged in the charge: R v Taea [2007] NZCA 472 at [47].

[31] For the Crown, Ms Markham agreed with steps (1), (3), (4), (6) and (7) but raised issues with steps (2) and (5).

[32] Ms Markham queried whether step (2) was necessary. We see advantage in expressing the point in simple language, as the Judge did here (see below at [43]).

[33] As to step (5), Ms Markham submitted that the pre-Evidence Act direction in

R v Sanders at [20] is still the appropriate approach:

The jury should be told that if they find the necessary distinctive similarity in the accounts of the complainants, they may use the evidence given by the other complainant(s) to help them in deciding whether the charge or charges against the accused in respect of the complainant whose case they are considering is established beyond reasonable doubt.

That direction is closely similar to one given under s 103 of the Criminal Justice Act

2003 cited by the English Court of Appeal in R v Freeman [2008] EWCA Crim 1863 at [15].

[34] Although the Sanders direction explains what the evidence may be used for, it does not say how it may be employed. The Law Commission’s Report requires greater specificity in applying s 43: New Zealand Law Commission Disclosure to the Courts of Defendant’s Previous Convictions, Similar Offending and Bad Character (NZLC R103 2008). We have emphasised the relevant passages:

3.90 In principle, at the point of jury consideration, propensity evidence should be approached as the item of circumstantial evidence which

it is. It should not be necessary to prove the propensity incident, as a separate item, to the standard beyond reasonable doubt or even on the balance of probability. The propensity evidence (or more accurately, the propensity which it proves) will be taken into account by the jury along with all the other circumstantial evidence as one of the “strands of a rope” on the way to the overall assessment whether guilt on the trial charge has been proven beyond reasonable doubt.

[35] We note in passing that a footnote adds:

There is a concealed refinement. In the necessary determination whether the propensity witness is to be believed, the jury will tend to take into account the evidence of the complainant and any other propensity witnesses. The natural approach is to consider all holistically, and as mutually supportive. Where one alone may not be believed, there will be greater willingness to believe all of a number: compare R v Sanders [2000] NZCA 118; [2001] 1 NZLR 257, 260. Almost inevitably, there is a veracity decision preceding and integral to the propensity decision.

[36] While the point is logical, the detailed response in Sanders at [23] provides a practical answer which it is unnecessary to reproduce. The distinction between propensity evidence and the veracity rules of s 37 discussed by the Law Commission at 6.58 to 6.62 was not advanced by Mr Davison and does not require further discussion.

[37] The step (5) point is further discussed at the end of a passage of the report dealing with the directions which should be given in relation to s 43. It states:

3.93 [Such] directions ... are still in an early stage of formulation. Some limited standard form guidance is available from previous common law approaches. (See for example R v M [1999] 1 NZLR 315, 324; R v Sanders (above) ... para [17]-[23]; ... . Care, however, is needed as the question of propensity per se is now directly relevant under section

40(2); and in the light of the dismissive approach to reliance upon previous common law authorities in R v H[ealy] ... Clearly, there will be a continued need for the general direction to consider each ... count separately, and to bring in a separate verdict. After identifying whether propensity evidence is allowed in, the direction must identify the issue or issues to which that propensity evidence is said to relate, and how it is said to be relevant. ...

The points of similarity, timing, unusual features or the like advanced by the prosecution should be summarised, and their potential implications explored. The jury should be reminded that the sufficiency of such matters to prove the contended propensity, and the weight to be given to that propensity, if the jury is satisfied that it exists, are questions of fact entirely for them ... . The jury should be

warned that: mere propensity to offend, by itself, cannot be sufficient to prove the offending beyond reasonable doubt; propensity is only one item of evidence to be considered along with all the others; and not to be persuaded by feelings of prejudice it may engender.

[38] Failing to explain properly the way in which propensity evidence can be used risks the problem identified by the Law Commission at 6.55:

... requiring jurors to use evidence only for limited purposes when the evidence appears naturally and sensibly relevant to wider purposes.

That risk raises the question posed by s 43(4)(b):

(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[39] We are satisfied that, for the purposes of s 43, the Law Commission proposal, adopted by Mr Davison in his step (5), is to be preferred to the direction at common law in Sanders.

[40] We are therefore of the view that the seven steps proposed by Mr Davison accurately encapsulate the necessary elements of a propensity direction required in this particular case, and we proceed on that basis.

[41] We add that a specific direction on propensity evidence is required to explain to the jury what relevant evidence has been called, to what it is directed and how the jury may use it. While those ideas are captured within Mr Davison’s seven steps, we do not suggest that a trial Judge should, irrespective of the particular circumstances of the case, follow a specific formula. On the contrary, it is essential that the Judge be given sufficient flexibility to tailor the direction to the needs of the particular case.

Application

[42] Mr Davison accepted that at [44] and [45] of the summing up, step (1) was satisfied. The jury was told the Crown relied upon the evidence as relevant to establishing “propensity” on the part of the accused to act in a sexually inappropriate way by interfering with young girls.

[43] Given the direction in the second sentence of [45] “what you must do is ask whether that evidence establishes a pattern of behaviour on the accused’s part”, we do not consider that the jury would have been in any doubt as to step (2): the meaning of propensity.

[44] Mr Davison emphasised that at [46], while in accordance with step (3) the Judge identified one of the s 43(3) factors, the ages of the girls, touching and the presence of the complainant, he did not at that stage include in his direction the defence contention in respect of step (3). That contention was that there was nothing sinister in what happened in the vehicle when the gear was being changed, nor when A was being lifted into the truck, nor in the swimming pool; this was really a re- reading of history in light of the emergence of dramatic allegations at a late stage. The references to A needing a bra could, it was submitted, well have been teasing rather than anything inappropriate. And, in particular, the evidence did not establish the existence of a propensity to act in a particular way towards young girls.

[45] At [55] the Judge acknowledged that he had so far referred only to the Crown argument and alluded to Mr Eaton’s contention that none of the evidence of propensity supported the approach which the Crown contended. It was only later, in the course of putting the defence case at [87], that he referred to trial counsel Mr Eaton’s argument in response to A’s evidence

[46] The difficulty with referring only to the Crown contentions as part of the direction as to propensity at step (3), and leaving the defence submission in relation to step (3) to the defence case, is that the defence submissions are deprived of the judicial imprimatur of being part of the total propensity direction. The point is not necessarily fatal to the validity of the direction but is a factor to be considered in the overall appraisal of the case.

[47] As to step (4), there was an appropriate direction at [46] that it was for the jury to determine the facts. They already been told at [45]:

... but if you don’t consider that it has any distinctive similarity about it, then you just put it to one side.

That went a substantial way towards complying with step (4) as well as complying with step (6), but had been undermined to a degree by the first sentence of [45]. We agree with Mr Davison’s argument that in the first sentence at [45] the Judge erred in stating:

The evidence was admitted because of its close connection to the account given by the complainant.

We return to this point in our overall evaluation of the case.

[48] The question of the character of the evidence is, in accordance with step (4), entirely a matter for the jury: R v Foord CA95/99 18 June 1999. To give the Judge’s reasons for admitting the evidence risks being taken by a jury as suggestive or even as a direction of how they should answer step (4). Nevertheless it is undeniable that there was a close connection between A’s evidence and the account given by the complainant. The error was therefore of little, if any, significance.

[49] Step (5) was not stated in the form proposed by Mr Davison, with the direction to use the propensity evidence as part of the circumstantial evidence, which might be better understood if expressed as “simply part of the total evidence in the case”. Instead at [47] it was expressed with less clarity; “it establishes a propensity to act in a particular way towards young girls...you may use it as confirmatory of the complainant’s evidence”. This requires further discussion.

[50] Step (6) was properly addressed at [45] in the passage quoted above (at [47]).

[51] Step (7) was the subject of the final two sentences at [45], which were appropriate.

[52] We return to step (5). As discussed above, the direction should have explained that propensity evidence was to be used as circumstantial evidence. Instead, the direction conformed with that proposed in Sanders. As a result, the jury were not told how they might use A’s evidence. On the basis of the direction at [47] alone, the jury might have used the evidence in the very manner prohibited by step (7). While the direction complying with step (7) prohibits that course, the jury were left to make a deduction: “you may use it but not to reason that because the accused

offended like this before he must have done it again.” The failure to give an optimum direction is something we need to consider in determining whether any miscarriage of justice arises.

B’s evidence

[53] Having at [45] – [47] directed the jury on the use of A’s propensity evidence, at [48] the Judge turned to the evidence of B. Mr Davison challenged the first sentence as being inconsistent with the basis on which this Court allowed the evidence to be admitted. The description of the evidence as “in a somewhat similar vein” was, he submitted, likely to be understood by the jury as a direction that they should adopt the propensity approach to that evidence. Yet the Judge’s pre-trial ruling (confirmed by this Court) was that it should be excluded on that basis. It was admissible only on the rather different basis of relevance to the appellant’s relationship with the complainant. That topic is the subject of the direction at [49].

[54] Mr Davison also challenged the use in [49] of the adjective “direct” in “direct evidence” and “direct confirmation”. We do not accept that submission. “Direct” connotes “going straight to the point” (Shorter Oxford English Dictionary (5ed

2002)). B’s evidence was, as the Judge said, just such evidence as to the relationship between the appellant and the complainant.

[55] We will return to the points identified at [46], [47], [52] and [53] in our overall evaluation.

Prior out of court statements

The re-examination and admission of out of court statements

[56] The law generally requires that a witness give evidence orally rather than by production of a written statement prepared out of court. The rule and its exceptions are stated in s 35 of the Evidence Act. Section 35 was also relied on by the Crown to admit oral evidence of what the complainant had said to B and to two other witnesses: C and D. Defined by s 2, “previous statement” means “a statement made

by a witness at any time other than at the hearing at which the witness is giving evidence.” Section 35 states:

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

[57] Following cross-examination of the complainant by Mr Eaton, who represented the appellant at his trial, the Crown applied for the admission under s 35 of previous statements made orally by the complainant to witnesses C and D. The Judge gave leave and the evidence was admitted.

[58] The appellant submits that the conditions of s 35(2) were not satisfied, and that the evidence should in any event have been excluded under s 8.

Section 35(2)

[59] At the end of the complainant’s evidence the Crown applied under s 35(2) for leave to call evidence to refute a defence contention that the complaint’s assertions against the appellant were a recent invention.

[60] Defence counsel argued that the conditions of s 35(2) were not satisfied. He accepted that the complainant had been cross-examined on the basis that she had deliberately added to her story, by concocting additional allegations when the first set of allegations did not have their intended effect of securing a payment. But he submitted that the proposed consistency evidence was referable to the original allegations, not those which were the subject of the recent invention contention. He contended that there was no sufficient nexus between the allegations said to have been recently concocted and the proposed consistency evidence.

[61] The Judge rejected the defence argument. The complainant had been cross- examined for about two days in all. The Judge identified three themes as emerging from the cross-examination:

(1) That throughout the relevant period the complainant was infatuated with the appellant and developed a fantasy that she and he were involved in a relationship and were in love.

(2) That over an extended period she was jealous of the accused’s position, lifestyle and material well-being, and when the complainant’s own marriage failed the long-standing sense of jealousy prevailed and led her to make the allegations against the appellant; and

(3) That the complainant’s allegations as a whole were concocted to support a claim for monetary compensation which was the subject of negotiations in 2004.

[62] The Judge rejected the defence characterisation of the cross-examination that the themes of jealousy and fantasy did not entail a claim of recent invention referable to the allegations to which the prior consistent statement evidence was related. He also rejected the submission that the recent invention challenge was limited to events to which the evidence of C and D was not relevant.

[63] The Judge held that, while such analysis might be available on one view of the defence theory of the case, a lengthy cross-examination must be considered by reference to its likely impact in the eyes of the jury. On that basis he was satisfied that it would be open to the jury to interpret the cross-examination as containing general claims of recent invention borne of jealousy and of a desire to ensure monetary compensation, and that the recent invention criterion was satisfied so as to bear on the counts to which the evidence of C and D was relevant. He then

considered whether the evidence was of sufficient probative value to outweigh any unfair prejudicial effect: s 8(1).

[64] C’s proposed evidence was of an oral complaint made by the complainant to him in early 1972 and directly relevant to the allegation of indecency in count 7 (in his reasons the Judge referred to count 8, but the jury would not have been led astray by this slip of the tongue). In an allusion to s 8 the Judge held that, in view of his conclusion that the complainant’s evidence had been challenged as a recent invention, the evidence was of probative value outweighing the risks flowing from its introduction.

[65] D had been at high school with the complainant in the mid 1970s. The Judge considered that her evidence which was relevant to alleged sodomy (count 8), sexual intercourse on a picnic table (count 9) and sexual intercourse following a skiing injury (count 12) also satisfied the requirements of s 35, and admitted the evidence. The Judge did not refer specifically to s 8 in relation to the evidence of D.

The evidence given by C

[66] C’s evidence related particularly to count 7, on which the appellant was discharged because the evidence showed that the complainant was not less than

12 years of age as alleged. Evidence properly relevant to the count would no doubt constitute propensity evidence admissible on the other counts.

[67] At the age of 11 C lived next door to the complainant who was a year older than him. He recounted an incident that occurred when the appellant was at the complainant’s house recuperating from an accident. The appellant was staying at the complainant’s house in an upstairs bedroom. C said that he and some other children, including the complainant visited the appellant in his room. He said that when they left the complainant and the appellant stayed in the room. Afterwards the complainant told C that the appellant had asked her to get into bed and to touch his penis and he touched her vagina. Apart from that occasion, C mentioned that the complainant told him the appellant had or had tried to have sexual intercourse with her.

[68] D had been in the third form with the complainant. In evidence related to count 8, she said that the complainant had given a “very vibrant” description of anal sex with the appellant. D remembered the complainant explaining with a gesture with her middle finger indicating up the backside, and saying that she did not like it and that it hurt. She also gave an account relevant to count 12 – that at a time when the complainant had broken her ankle skiing the appellant brought her back from the mountain and on the way had sexual intercourse with her. D remembered the complainant telling her about that episode at the time. As to count 9, relating to intercourse on a picnic table - D recounted the complainant speaking of having had sexual intercourse with the appellant on a picnic table. D also remembered the complainant discussing with her concerns about becoming pregnant.

Submissions

[69] Mr Davison argued that Mr Eaton had taken care to distinguish between the counts where recent invention was alleged and those in which it was not alleged. In relation to the former there was no evidence that could be admitted under s 35(2), and in relation to the latter the conditions of s 35(2) were not met.

[70] He submitted that none of the issues that D’s evidence referred to were the subject of allegation of recent invention advanced by the defence to the complainant during cross-examination. It was therefore submitted that the evidence of D was not “necessary” in terms of s 35(2) and was likely to have a significantly prejudicial effect.

[71] The Crown’s response was that the admissibility of a prior consistent statement to rebut a claim of recent invention is a question for the trial Judge and the appellate Court ought to give great weight to that Judge’s opinion: R v Wilson (2004)

[2004] NZCA 319; 21 CRNZ 418 at [19] and [22] (CA). At common law the requirement was expressed as that a prior consistent statement “rationally tends to answer the attack”: Wilson at [19]. In Wilson the Judge’s ruling was given after a lengthy two-day cross- examination of the complainant. The Judge had correctly noted that the issue was

the likely impact of the cross-examination in the eyes of the jury: Wilson at [21]. The issue is what impression has been conveyed by the cross-examination overall, not whether the allegation was the subject of direct questions. The Crown submitted that it was well open to the Judge conclude that, viewed overall, the cross- examination contained strong themes that the allegation as a whole was concocted in around 2002 – 2003 as a result of the complainant’s jealousy and/or a desire for monetary compensation characterised by the defence’s blackmail. Much of the cross-examination was of a general nature, not directed to specific counts.

[72] The Crown submitted that the cross-examination highlighted the complainant’s failure to complain at the time, and suggested emotional and financial motives for an inventive complaint many years later. The evidence of C and D has obvious probative value in rebutting the attack, the fact that count 7 was ultimately removed from the jury for reasons relating to the complainant’s age did not require the jury to ignore C’s evidence. No such direction had been sought by the defence.

Discussion

[73] In cross-examination, challenges asserting recent invention were made in relation to four alleged events. The episodes are most easily identified by reference to their location:

(1) At a hotel (counts 1, 2, 5);

(2) At X Road, Christchurch (count 10);

(3) At Y, Christchurch (original count 11 on which appellant was discharged by the Judge); and

(4) At a ski field (count 14).

There was no challenge which asserted recent invention in respect of alleged events: (1) At farm 1 (counts 3 and 4);

(2) At Picton (count 6);

(3) At Christchurch (original count 7 on which appellant was discharged by the Judge);*

(4) At Christchurch (count 8) (alleged sodomy);** (5) On a picnic table (count 9);**

(6) Following injury at ski field (count 12);** and

(7) At farm 2 (count 13).

The asterisks record the counts alleging conduct as to which C (*) and D (**) respectively said that A had said something to them at the time which was consistent with her evidence.

[74] Two questions require consideration. One is whether s 35(2) was satisfied, the other concerns the application of s 8.

[75] The first question turns on what impression was conveyed to the jury. The advantage enjoyed by the Judge is a matter warranting particular consideration.

[76] It is true, as Mr Davison submitted, that the cross-examination discriminated carefully in relation to specific conduct which was the subject of individual counts. But there was in addition quite general cross-examination, not confined to any particular counts, which was suggestive of recent invention.

[77] Analysis of the evidence supports the Judge’s conclusion that there were three major themes. Certainly one of them was that throughout the relevant period the complainant was infatuated with the appellant and developed a fantasy that she and he were involved in a relationship and were in love.

[78] That was an allegation of self-delusion from an early stage. Had that stood alone it would have been consistent with the appellant’s argument that there was no

general challenge of recent invention. But it was coupled with the second theme, that over an extended period the complainant was jealous of the accused’s position, lifestyle and material well-being.

[79] That was an allegation not of delusion but of malevolence: that when the complainant’s own marriage failed there prevailed a long-standing sense of jealousy of the appellant’s family, and led her to fabricate allegations against the appellant.

[80] That allegation was given bite by the third theme – that the complainant’s ultimate allegations were concocted to support the claim for monetary compensation, expressed in a letter of 20 September 2003 addressed to the appellant although never sent, and followed up in negotiations in 2004.

[81] For the Crown Ms Markham emphasised the overall effect of the defence cross-examination of the complainant. It included the jealousy theme: the appellant and his wife’s ownership of property when the complainant had none; his wife’s life of luxury and success from which the complainant was excluded; the complainant’s belief that they had been favoured and she had not; her business had failed; she was under financial pressure which affected her children’s education; she was after him for money and in a position of power which allowed her to threaten going public if she were not paid.

[82] It was simply not feasible for defence counsel to fence off the counts in relation to which there was no specific claim of recent invention from those where there was. The jury would have had no idea of the refinements of law involved in s 35(2) and no reason to make the distinction contended for. Our overall impression is that the defence were advancing overlapping themes identified by the Judge: fantasy extending back to childhood of itself containing no element of recent invention; but also jealousy, fuelled by financial pressures and expressed in a desire for money and threat of publicity if it were withheld. The jury would have seen the overall challenge as attacking all the complaint’s allegations on those broad bases.

[83] Since the allegations included counts 8, 9 and 10, as to which complaint was made to D, as well as the original 7, of which complaint was made to C, in terms of s 35(2) it was:

necessary to respond to [the] challenge to [the complaint’s] veracity or accuracy ...or [the] claim of recent invention on the part of the [complainant]

by admitting the previous statements by the complainant to D and C. But only subject to s 8.

[84] That section states:

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a) have an unfairly prejudicial effect on the proceeding; or

(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

[85] Citing R v Barlien [2008] NZCA 180, Mr Davison submitted that the evidence of C and D was admissible only as tending to show consistency and not as to its truth and that the Judge erred in directing the jury to the contrary. Barlien however reached the opposite conclusion, holding that it gave effect to the Law Commission’s recommendation that the law should be altered in this respect. We are not prepared to depart from a recent considered decision of this Court even if, as is arguable, that conclusion was not essential to the result. So while no particular s 8 argument was advanced by the appellant in relation to the evidence of D and C, we have given consideration to whether s 8 was infringed.

[86] The evidence of both C and D was undoubtedly damaging to the defence. But there is no reason to believe that either was concocted or was otherwise unfair. In requiring the Judge to take into account the right of the defendant to offer an

effective defence, s 8 cannot be read as intended to unravel the effect of s 35(2) as admitting the evidence.

[87] We therefore do not accept the challenge to admissibility of the evidence of C

and D.

The direction in respect of C and D

[88] The Judge gave the following direction:

[51] Dealing first with [C], his evidence, of course there is no longer a count relevant to it, because it transpired that the complainant was over 12 at the time of the ... accident in January 1972. But he nonetheless gave evidence of what happened, he said, upstairs, and what the complainant told him after the event when they were 12 or so years of age. He also said that the complainant spoke to him about the accused “fugged me” as she described it.

[52] [D], who was in the third form with the complainant and therefore knew her from when she was about 15 years of age on, ... spoke rather more specifically about things she can remember being told. The reference to up the bum, a picnic table, the day her ankle was broken and sex having occurred in the house.

...

[54] Again, what is the purpose of this evidence? How may you use it? It is not original evidence. It is second hand. It is what these witnesses were told by the complainant at the time, so in a sense it adds nothing new to the case. But, nonetheless, the Crown contends that it is highly important because one of the powerful submissions that has been made in relation the complainant’s allegations in this case is that she has concocted them in 2003-2004, and thereafter, in order to try and extract the advantages that we heard argued about yesterday. Yet, the Crown said, how can that be when, on examination, she was speaking to others of at least some of the acts which formed the very basis of the charges and she was doing so 30, 35 years ago. So that answers the question I posed, how may you use this evidence? You may use it, if you accept the evidence, and view it in the way for which the Crown contends, as being confirmation, that it tends to confirm the complainant’s account that these events occurred at the time she alleges and that this is not a case of recent invention of allegations in the period 2004,

2003.

...

[56] Perhaps there is another aspect, particularly from the evidence of [C] [B] and [D] that you may wish to reflect upon. Those witnesses, or at least some of them, made observations to the effect that this was startling at the time, because here was a contemporary, a friend of theirs, much the same age, who was speaking about things which were beyond their experience, which they had not heard of before. That was partly why they said they

could recall them. This may raise in your minds the question, how did the complainant have experience which they didn’t have, knowledge which they didn’t have, which enabled her to say those things? But that is very much something for you to consider.

[89] The defence challenge to this evidence ([63] and following), made at the end of the summing up and now repeated, has been discussed at [73] and following.

Warning on use of historical evidence

[90] In Total Recall? The Reliability of Witness Testimony (NZLC MP13 1999) which accompanied its evidence report (NZLC R55 1999) the Law Commission said:

2 We are not well informed about the nature of memory and the circumstances in which memories may be reliable or unreliable. ...

...

10 There are no simple or straightforward answers about the reliability of witness testimony. While much of the research in relation to eyewitness testimony, ... and memories of traumatic events has focused on the limitations of memory, there is a danger of exaggerating that scepticism. As Lindsay and Read [“Psychotherapy and memories of childhood sexual abuse: a cognitive perspective” (1994) 8 Applied Cognitive Psychology 281 at 293] put it: “It is important not to exaggerate the fallibility of human memory. Memory is often wonderfully detailed and accurate.”

11 Memories are not permanently stored as if recorded on tape, unaltered, to be played back some time later as an exact recording of the event. Nor are memories always completely accurate. It is generally agreed by psychologists that memory is both a reconstructive and reproductive process. So, memory depends in part on knowledge and in part on other sources of information additional to what is recorded when an event is first experienced. It is an active rather than a passive process:

The observer ... reaches conclusions on what he has seen by evaluating fragments of information and reconstructing them. ...

[Buckhout “Eyewitness testimony” (1974) 231 Scientific American

23 at 23.]

[91] Parliament’s response to the Commission’s research was s 122 of the

Evidence Act:

122 Judicial directions about evidence which may be unreliable

(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—

(a) whether to accept the evidence:

(b) the weight to be given to the evidence.

(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:

(a) hearsay evidence:

(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:

(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:

(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:

(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—

(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or

(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.

(4) It is not necessary for a Judge to use a particular form of words in giving the warning.

...

[92] This Court in its pre-trial judgment contemplated a s 122 warning, noting at

[29] that:

The direction would relate to both whether or not the evidence should be accepted and the weight to be afforded to it.

[93] The Judge gave the following direction:

[27] [The case has] been characterised by the inability of many witnesses to bring to mind contextual detail and that is only of course to be expected. The point of all this is that where we are dealing with historical events, there is need for special care, for caution on your part as a jury. It is only a matter of common sense. A number of witnesses freely acknowledge that they had little or no recall of detail, contextual detail, but said by contrast that they could remember core aspects because they were matters which struck home with them at the time and never left their memory. So it would be for you to consider those various witnesses and ask whether the loss of detail is of real concern or whether it is not. What you must not do of course is relax the burden of proof. It applies with full rigor despite the fact that they are dealing with matters which occurred so long ago.

[94] Mr Davison submitted that where a Judge has made a decision to give a warning under s 122(1) it must comply with s 122(1) by including both elements contained in s 122(1)(a) and (b), namely the need for caution in deciding whether to accept the evidence and the need for caution in deciding the weight to be given to the evidence. He submitted that the warning given was inadequate in that it did not clearly, adequately or sufficiently warn the jury of the need for caution but rather tended to diminish or negative the requirement of the need for caution. The Judge made no reference to the need for caution in deciding whether to accept evidence or not nor in deciding the weight to be given to the evidence. Rather he commented that the need for special care or caution was “only a matter of common sense”. He submitted that the circumstances of the trial, which included delay of up to 40 years, and the evolving allegations made by the complainant including those evidenced by other witnesses, called for a clearly expressed warning which conformed with the requirements of s 122(1) in an unambiguous fashion. The jury should, he submitted, have been directed to approach the issues of accepting evidence and attributing weight to evidence with caution having regard to the lengthy interval between the alleged events and their consideration.

[95] In enacting the Evidence Act, the New Zealand Parliament declined to require the mandatory warning prescribed by the High Court of Australia in Longman v R [1989] HCA 60; (1989) 168 CLR 79. That Court stated at 91:

There is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them

... . That factor was the applicant’s loss of those means of testing the

complainant’s allegations which would have been open to him had there

been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial. After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested. Fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.

[96] Parliament stated, in s 127, that a judge may tell the jury that there may be good reasons for delay or failure to make a complaint. In s 122 it has left to the trial judge the exercise of judgment whether to give a warning. In making the assessment in this case, the Judge had two discrete reliability issues to consider in terms of s 122(3). The first involved the historical nature of the charges. The second involved the historical nature of the prior statements admitted in re-examination and from witnesses of prior complaint, which were recounted many years after the statements were made.

[97] The former was dealt with less vehemently than Longman would require. The latter was not the subject of direction. In our view consideration should have been given to a specific direction in relation to the prior consistent statements.

[98] But implicit in the s 122 authority is the assessment of whether to give a warning and, if so, what intensity of warning to give. As to the historical nature of the charges, it cannot be said that the decision to give the less emphatic warning was itself an error of law.

[99] As to the delay by the new witnesses in bringing the complaints the subject of the Crown’s re-examination, there can be no doubt that the jury was well aware that it was having to determine veracity and reliability issues based on the recollection of a number of witnesses of what happened many years before.

[100] These are, however, factors in an overall appraisal of the fairness of the trial and we will return to that topic.

The remaining grounds

[101] The remaining grounds, while not relied on individually as justifying a retrial, were advanced for consideration together with the major grounds already discussed.

Late admission of D’s evidence

[102] On day three of the trial the Crown informed the Court and the appellant’s counsel that D had made a statement to the police the previous day and the Crown proposed to call her as a witness. The Judge ruled that her evidence was admissible but directed that she not be called before Monday of the second week of the trial, effectively four clear days later. Mr Davison submitted that, because the complainant’s evidence had been concluded, the defence had no opportunity of cross-examining her with reference to the matters covered by D and that the admission of her evidence was unfair and prejudicial. There was, however, no application by the defence to recall the complainant. Nor in the period between the trial and the appeal has evidence been tendered to demonstrate prejudice.

Erroneous ruling to permit re-examination of complainant

[103] The Judge granted the Crown’s application under s 35(2) for leave to introduce previous consistent statements made to the police by the complainant. We are not persuaded of any error or unfairness in the course adopted.

The trial Judge failed to control the complainant from giving evidence in a prejudicial and irrelevant manner

[104] In the course of her evidence the complainant made frequent reference to her physical disability and to the fact that she was “only a child though” and made allegations that the appellant was cunning, powerful and manipulative and the

circumstances left her with no choice but to put up with continued abuse from the appellant.

[105] But we were advised that the experienced defence counsel raised the matter only on one occasion. The learned Judge was in the best position to assess whether the evidence was prejudicial, and if so when and how to intervene. The fact that no particular issue was raised at trial leads us to place little weight upon the submission.

Breach of pre-trial undertaking as to evidence of anal injury

[106] Prior to the commencement of the trial the Crown had given the defence an undertaking that it would not lead evidence from the complainant about her claim to have sustained anal injuries as a result of the alleged sodomy. The Crown had previously been directed by the Court to provide medical evidence to support that claim if it was intending to lead such evidence. Subsequently the Crown elected not to lead the evidence and not to provide the supporting medical information. In doing so it undertook to the defence not to lead any evidence on the subject.

[107] While giving evidence in chief the complainant stated that as a result of the sodomy she received a tear in her anus and had problems for the rest of her life. It was submitted that the appellant was deprived of an opportunity to adduce evidence as to whether or not such a condition did in fact exist from the time of the alleged events by obtaining full discovery of medical records.

[108] But the absence of evidence before this Court of the existence of such records suggests that had the defence been given notice of the allegations there could have been no better response.

Misstatement of defence case

[109] It was submitted that the Judge misstated the defence case in giving the direction contained at [54] ([88] above), that is, by stating the incorrect proposition that the complainant’s allegation had been concocted in 2003 – 2004. We have

already dealt with that point above at [77] – [82]. We do not agree that there was misstatement.

[110] It was further submitted that, in summarising the defence case, the Judge commented in a manner tending to neutralise a defence proposition. The defence submitted that the complainant had given evidence inconsistent with her police statement in a number of respects which could not have been the result of simple error or mistake and said that during the four years before the case reached trial, one would expect her to prepare herself and “get her story right”. After outlining this submission in summing up, the Judge said “I am not sure whether complainants do that in relation to this sort of thing”.

[111] Mr Davison did not however submit that there was any overall pattern of denigration of the defence case. The balance of the Judge’s summary of that case which extended over some six pages was clearly a fair synopsis of what that case was. While best practice might have been to reserve that comment for some other place in the summing up we have no impression of unfairness.

[112] Mr Davison also drew attention to an observation the Judge made in respect of a witness to whom the appellant had made statements in the nature of an admission. The Judge referred to the Crown contention that it was not the complainant who was initiating negotiations but rather the appellant, in an endeavour to buy the complainant’s silence. He commented, “It does seem to me, ladies and gentlemen, although the facts are entirely for you, that you should have a close look at [the witness’s] evidence of those phone calls and particularly the one he had with the accused”. That was a moderate comment which the Judge was entitled to make.

[113] A further point is misdirection by stating to the jury that their “first inquiry” was whether to believe the complainant or whether to believe the appellant, and that decision was the “first and major issue in the case” because “someone is lying about what occurred”. Mr Davison submitted that such direction would have deflected the jury’s attention from the fundamental requirement that the essential and first inquiry was whether the Crown had proved the case against the appellant beyond reasonable doubt.

[114] We accept that the direction was erroneous. A similar point arose in R v Boardman CA173/03 29 October 2003. This Court accepted the appellant’s submission that a comment of similar effect was misdirection. It is not the jury’s task to work out whom to believe but to decide whether the Crown has proved its case to the requisite standard. The question, to which we return, is whether such misdirection has led to miscarriage of justice.

[115] There was a final general submission that for the reasons mentioned the summing up lacked balance and failed adequately to put the defence case: see R v Keremete CA247/03 23 October 2003 at [18] – [19].

Evaluation

[116] We return to the points identified at [46], [47], [52], [53], [96] – [100], [114] and [115]. They are to be considered against the criteria of s 385(1) of the Crimes Act: this Court must allow the appeal if it is of opinion that the judgment of the High Court should be set aside on the ground of a wrong decision on any question of law or if on any ground there was a miscarriage of justice, unless in terms of the proviso this Court considers that no substantial miscarriage of justice has actually occurred.

[117] Those points are:

(1) In summing up the Judge stated that A’s evidence was admitted because of close connection with the complainant. That characterisation should have been left for the jury to decide: at [47].

(2) While discussing propensity the Judge did not refer to the defence arguments that the evidence did not show propensity: at [46].

(3) There was no direction that the propensity evidence should be used as circumstantial evidence to be considered with all other evidence when assessing the issues, including the reliability and credibility of the complainant used in a circumstantial manner: at [52].

(4) The description of B’s evidence as “in a somewhat similar vein” to

A’s: at [53].

(5) The historical evidence warning did not address the two issues identified in s 122: at [96] – [100].

(6) The Judge erred by stating to the jury that their “first inquiry” was whether to believe the complainant or whether to believe the appellant, and that decision was the “first and major issue in the case” because “someone is lying about what occurred”: at [114].

(7) Whether there was overall lack of balance: at [115].

[118] We have stated that we do not regard the error at [47] as material.

[119] We have described the omission at [46] as not necessarily fatal to the validity of the direction, since the defence contentions were eventually put. The failure to refer to those contentions within the judicial imprimatur of the propensity direction is to be seen within the context of an unchallenged direction as to onus and standard of proof. While it would have been better to have referred to the defence contention, we do not doubt that the jury would have appreciated that the premise on which the direction was given was their acceptance of the witnesses’ evidence in preference to that of the appellant. The point goes to overall balance rather than being of itself an appealable error.

[120] The direction discussed at [52] was in accordance with that of this Court in Sanders. Although not in optimum terms, what matters is its practical effect. We do not consider that use of a direction which has survived virtually all propensity evidence appeals since 2001 is so misleading as to entail miscarriage.

[121] The point at [53] is to be considered in context. In terms of its being evidence from a school-friend about improper touching, B’s evidence was “in a somewhat similar vein” to that of A. We have considered whether there is risk of miscarriage by the jury’s treating that link as suggesting they might, contrary to the

decision of this court, treat B’s evidence, like A’s, as evidence of propensity. We have however concluded that the following passages at [48] – [49] would have left the jury in no doubt as to how the evidence should be used.

[122] The next point (at [96] – [100]) concerns s 122, discussed at [90] and following above. Had the evidence of the complainant stood alone we should have regarded the warning as inadequate in the light of the defence contentions, which included fantasy as well as malice and greed. As Mahoney notes in The Evidence Act 2006 at 405, the Select Committee did not accept the Law Commission’s view that, while delayed evidence may be unreliable in some cases, the risk of unreliability is not inherent in cases where there is delay. Here, however, we have held that the evidence of A is admissible as propensity evidence, that of B as directly relevant to the complainant’s alleged relationship with the appellant, and that of C and D is admissible as evidence of the truth of the allegations made to them by the complainant. There is also the appellant’s admission of the single episode of sexual intercourse with the complainant when she was of an age to consent. We have said (at [24]) that the stronger the Crown case in respect of propensity evidence the higher the prospect of securing admission of the evidence. We consider that the same may be said of a s 122 warning: the greater the support of other evidence, the less the need for such warning. The Judge could have given a stronger warning, dealing with both limbs of s 122(1). But there is no basis for apprehension that the witnesses experienced any real difficulty in remembering the essential points of what must, on their evidence, have been memorable events. It is also to be recalled that warnings based on s 122(2)(e) and s 127 will, in many cases, cancel each other out. Considering the nature of the warning given, in the light of the whole of the evidence, we are not satisfied that there has been miscarriage in this respect.

[123] The next point (at [114]) is the Judge’s error in stating to the jury that their “first inquiry” was whether to believe the complainant or whether to believe the appellant, and that decision was the “first and major issue in the case” because “someone is lying about what occurred”. It is conveniently considered together with the final point (at [115]), of lack of balance.

[124] If read out of context this could suggest a concern that the jury did not clearly understand their task. That would be a distinct error of law. The question is whether it was material error in the context of the summing-up as a whole.

[125] We have examined the summing-up with care. Subject to the challenges already discussed, it covers all topics required to inform the jury as to their task and makes plain the nature of the defence case as it does that of the Crown. We consider that, as in Boardman, given the total context of the summing up, with its directions as to onus and standard of proof, the error would not have misled the jury.

[126] Nor do we consider that, taken as a whole, there is any imbalance in the directions, which made clear to the jury both their legal obligations and, as we have noted, the nature of the defence.

Result

[127] The appeal is dismissed.

[128] Order prohibiting publication of names or identifying particulars of A, B, C

and D.

Solicitors:

Crown Law Office, Wellington